Terms and Conditions

1. Scope of Work

New Orleans Flooring Distributors, LLC (“NOLA Flooring”) agrees to furnish only those materials, equipment, tools, and labor specifically detailed in the Invoice provided to the Client (also referred to herein as the “Customer”)(collectively the “Work”). Any labor or services not expressly included in the Invoice are excluded from NOLA Flooring’s scope of the Work. The Work excludes any preexisting deficiencies, substrate issues, or any code upgrades unless specifically stated therein. Further, the Work does not include inspection of existing conditions and/or issues at the Address where the Work is to be performed (the “Project Address”) unless expressly included in the Invoice. The Customer represents it has made all necessary preparations for receipt of the Work. In the event only a Quote was prepared for Customer, then the Invoice shall mean that certain Quote upon which a deposit was placed to begin the Work.

2. Materials

Materials will be standard stock materials unless otherwise specified and will match existing materials within reasonable tolerances, as determined by NOLA Flooring in its sole discretion, as to color, texture, design, etc. Any changes in color or type of material will be at Customer’s sole expense, at NOLA Flooring’s standard rates. Returns are allowed on stock items within twenty (20) days of pick-up/delivery subject to Customer providing NOLA Flooring with the sales receipt for the purchase. All returns must be undamaged and unopened and are subject to a thirty percent (30%) restocking fee. No returns are allowed on special orders unless specifically allowed and approved by the supplier and subject to Customer providing NOLA Flooring with the sales receipt for the purchase.

3. Access

The Invoice price is based on performing the Work during normal working hours unless otherwise agreed, and Customer agrees to provide all necessary access to the jobsite as required until the Work is completed. Customer will provide adequate electrical power to NOLA Flooring for the operation of tools and equipment required for the Work. Customer is responsible for taking all necessary preparations at the Project Address, including removal of furniture, to ensure that same is ready for receipt of the Work. Customer also warrants that the Project Address is safe and free of hazardous conditions, pests, or other safety risks that may endanger personnel performing the Work. NOLA Flooring may photograph the Work during progress and upon completion for quality assurance, recordkeeping, and marketing purposes.

4. Addition/Deletion of Work

Any changes to the Work, including additions, deletions, or modifications, must be documented in a written change order signed by both parties prior to execution of the change. However, if the Customer verbally or otherwise directs NOLA Flooring to proceed with additional or modified work, NOLA Flooring may, at its sole discretion, perform such work, and the Customer agrees to pay for all such work at NOLA Flooring’s then-current standard rates, or at a different rate if such rate is expressly agreed to in writing by the parties, as invoiced. All such additional or modified work shall be deemed incorporated into and governed by the terms of this Agreement.

5. Cleaning Up

NOLA Flooring shall keep the premises clean from accumulation of waste material directly resulting from its Work and, at the completion of the Work, shall remove from the premises all of its rubbish and surplus material. The Customer is responsible for providing adequate waste containers at the Project Address capable of holding all waste created from the Work.

6. Security

NOLA Flooring is not responsible for security of the jobsite, and therefore it is agreed that NOLA Flooring shall have no responsibility for any damage, disappearance, or theft of jewelry, art objects, silver, gold, antiques, guns, personal items, or other valuables, nor is NOLA Flooring responsible for any damage, disappearance, or theft of any of its materials. Customer agrees to remove, store, or protect all such items that are left at the jobsite. NOLA Flooring is not responsible for any harm to any pets or persons accessing the area in which the Work is being performed at the Project Address, and Customer agrees to ensure that pets or persons are not allowed to access such area.

7. Inspections

At the time when NOLA Flooring informs Customer that the Work is completed, the Customer will inspect the Work within forty-eight (48) hours, and if the Work is in conformity with the terms and provisions of the Invoice and Terms and Conditions (altogether the “Agreement”), the Customer shall accept the same and deliver to NOLA Flooring a signed certificate of substantial completion with a listing of punch list items, if any. If the Customer declines to sign such a certificate, then the Customer shall, within three (3) days, inform NOLA Flooring in writing of the reasons for such declination. If the Customer fails to so notify NOLA Flooring, or if the Customer fails to make such inspection, the Work shall be conclusively deemed to have been accepted by the Customer on the date NOLA Flooring last performed work at the Project Address.

8. Payments

The amount paid by Customer to NOLA Flooring to complete the Work is stated on the Invoice and subject to these Terms and Conditions. Payment is due from Customer to NOLA Flooring no later than thirty (30) days from the date of any invoice issued from NOLA Flooring to Customer related to the Work. Payments due and unpaid after thirty (30) days shall bear interest from the date payment is due at a rate of 1.5% per month (18% per annum). If NOLA Flooring is required to engage an attorney to collect amounts due and unpaid, or for any other breach of this Agreement by Customer, Customer shall be liable for NOLA Flooring’s attorney’s fees and costs associated with such collection and remedial efforts. NOLA Flooring is not responsible for any liens filed on Customer’s property and Customer shall defend and indemnify NOLA Flooring for any lawsuit arising out of Customer’s failure to comply with the payment terms under this Agreement.

9. Limited Warranty

NOLA Flooring warrants that the Work, if the installation is performed by them or its subcontractors, shall be free from material defects and shall be performed consistent with the standard of skill and care customarily exercised by persons performing similar work in the same locality under the same or similar circumstances. NOLA Flooring further warrants that the materials furnished will be of good quality and new unless otherwise stated in the Agreement. This warranty is valid for one (1) year from the date of substantial completion of the Work. The warranty excludes remedy for damage or defect caused by abuse, alterations to the Work performed by Customer or others, changes in condition to the Customer’s property, adverse weather events impacting the Work, water intrusion, improper or insufficient maintenance, otherwise maintains flooring in a manner inconsistent with the manufacturer’s guideline, improper operation, pre-existing conditions, or normal wear and tear and normal usage. The warranty further excludes remedy for damage or defect caused by moisture entering the house, whether from above or below. If Customer discovers any defects due to faulty workmanship and/or materials within the warranty period, Customer shall provide notice of any such defects to NOLA Flooring within thirty (30) days of Customer’s discovery of same. Customer acknowledges and agrees that failure to provide timely notice will cause prejudice to NOLA Flooring, and if Customer fails to provide timely notice of any such defects, Customer waives any warranty claims it may have had under this Agreement. This paragraph represents the entire understanding between the parties concerning the waiver of claims for failure to provide timely notice.

If any materials are subject to a warranty provided by the manufacturer, NOLA Flooring will pass through to Customer, to the extent allowed, any such guarantee or warranties provided to NOLA Flooring and the manufacturer will be the sole entity from whom Customer can seek satisfaction for any such claims. If Customer purchases any materials for use or installation by NOLA Flooring or directs NOLA Flooring to purchase particular materials against the recommendation of NOLA Flooring, NOLA Flooring shall have no responsibility whatsoever with regard to any claims arising from any incompatibility or defect regarding such materials or any breach of manufacturer’s warranty with regard to such materials.

NOLA Flooring shall not warrant or be held responsible for any Work, material defect(s), installation(s), damage(s), or any and all other workmanship not performed by NOLA Flooring or its subcontractors.

EXCEPT AS SPECIFICALLY SET FORTH HEREIN, NOLA FLOORING MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, REGARDING ANY WORK OR MATERIALS PROVIDED HEREUNDER INCLUDING WITHOUT LIMITATION ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR USE.

10. Differing Conditions

The Customer warrants that the Project Address is in good condition and suitable for the Work. If NOLA Flooring encounters conditions at the Project Address that differ materially from those indicated by Customer or of an unusual nature that differ materially from those ordinarily found to exist, NOLA Flooring may provide notice to the Customer and NOLA Flooring may suspend all Work until (i) the differing conditions are repaired, at the sole cost of the Customer; or (ii) the Customer directs NOLA Flooring to continue the Work, despite the differing conditions. If the Customer directs NOLA Flooring to continue the Work, they specifically waive any and all liability of NOLA Flooring due to the differing conditions. NOLA Flooring shall be entitled to an equitable adjustment in its pricing and time to complete the Work for either option.

Notwithstanding the foregoing, NOLA Flooring is under no obligation to inspect for, detect, or assess moisture conditions beneath raised homes, under slabs, within walls, or in any concealed or inaccessible areas that may be subject to moisture intrusion. Customer expressly waives any claims for damages or defects arising from such moisture conditions, including but not limited to mold, warping, buckling, or adhesive failure.

11. Indemnity

To the fullest extent permitted by law, Customer agrees to defend (with counsel reasonably satisfactory to NOLA Flooring), indemnify, and hold harmless NOLA Flooring from and against any and all claims, costs, expenses, or liabilities (including reasonable attorneys’ fees) arising out of or relating to the Project Address, the site, or the acts or omissions of Customer, its employees, agents, subcontractors, or anyone for whom Customer is responsible. This indemnity obligation shall not apply to the extent any such claims, costs, expenses, or liabilities are caused by the negligence of NOLA Flooring, its employees, agents, or subcontractors.

12. Insurance

Customer shall purchase and maintain general liability insurance and shall provide property insurance to cover the value of the Customer’s property and NOLA Flooring’s materials at the Project Address. If there is a loss or damage to the Work, which is to be covered by insurance maintained by the Customer related to the Work at the Project Address, NOLA Flooring shall be entitled to receipt of the proceeds of such insurance to the extent attributable to the loss or damage to the Work. NOLA Flooring shall maintain general liability insurance as well as workers’ compensation insurance as required by law. Customer waives all claims, including but not limited to, subrogation claims against NOLA Flooring to the extent the claims are covered by insurance.

13. Termination

If a party fails to comply with any material term or condition of this Agreement, then the other party may provide written notice of such default. Upon receipt of such notice, the party in default shall have ten (10) days in which to cure, or commence to cure, such default. If such default is not cured, or the party has not commenced to cure, within ten (10) days after such notice, the other party may terminate this Agreement upon prompt written notice. Notwithstanding anything in this Agreement to the contrary, if Customer has stated that it does not intend to pay for the Work or if NOLA Flooring has reasonable belief that Customer does not intend to pay for the Work, NOLA Flooring may immediately terminate this Agreement for cause without providing Customer with prior notice or opportunity to cure. If NOLA Flooring terminates this Agreement based upon Customer’s default, NOLA Flooring shall be paid all costs and expenses incurred as of the date of termination of the Agreement, plus a fee of 20% of the total Agreement price (i.e., as if the Work had been completed) for overhead and profit. If Customer terminates this Agreement based upon NOLA Flooring’s default, any Work already performed and materials already ordered that cannot be returned and/or restocked prior to the termination, shall be paid for by Customer in accordance with the terms of this Agreement.

14. Waiver of Consequential Damages

Customer waives claims against NOLA Flooring for incidental, consequential, or other indirect damages arising out of or relating to the Work, including but not limited to any damages for rental expenses, for losses of use, income, profit, financing, business and reputation, and for costs of delays whether based in tort, breach of contract, strict liability, or otherwise.

15. Limitation of Liability

To the fullest extent permitted by law, Customer understands and agrees that NOLA Flooring’s total liability, if any, arising under or relating to this Agreement is expressly limited to a sum not greater than the total amount paid by Customer for the Work authorized by this Agreement. The Customer acknowledges and agrees that this limitation of liability was relied upon by NOLA Flooring and was a necessary inducement to NOLA Flooring entering into this Agreement. In addition, any claim, demand, or cause of action arising out of or relating to this Agreement must be commenced by the Customer within nine (9) months after the earlier of: (i) the date of delivery of materials to the Customer (if NOLA Flooring’s Work is limited to material delivery only), or (ii) the date of substantial completion of the Work performed by NOLA Flooring (if NOLA Flooring’s Work includes installation). Any claims not brought within such period shall be deemed waived and forever barred. This limitation of liability shall not apply to damages resulting from NOLA Flooring’s willful misconduct, gross negligence, or fraud, to the extent such limitation is prohibited by law.

16. Notice

All notices, demands, requests, or approvals, including any change in mailing address shall be given in writing, to NOLA Flooring or Customer, as applicable, and shall be deemed served when delivered personally or on the third business day after the deposit thereof in the United States mail, postage prepaid, first-class mail, addressed as hereinafter provided. All notices, demands, requests, or approvals shall be addressed to NOLA Flooring as follows: New Orleans Flooring Distributors, LLC, 5451 Mounes St, New Orleans, Louisiana 70123. If to Customer, at Customer’s address as stated on the Quote, Invoice or the address last provided by Customer to NOLA Flooring or to any email address provided or utilized by Customer.

17. Independent Contractor

NOLA Flooring is at all times and in all respects an independent contractor. No personnel employed by NOLA Flooring shall be deemed under any circumstances to be agents, representatives, or employees of Customer. NOLA Flooring is an independent contractor, free to determine the manner in which the Work is performed.

18. Statutory Employer

For purposes of this Agreement, and pursuant to the provisions of La. R.S. 23:1061, NOLA Flooring and Customer jointly agree, stipulate and recognize that Customer shall be the statutory employer of any and all of NOLA Flooring’s employees and/or all employees of any subcontractors hired or retained in any manner by NOLA Flooring and/or any other person for whom NOLA Flooring may be held responsible, while any of the above-described persons are performing any work or providing any services under this Agreement. NOLA Flooring and Customer further stipulate, agree and recognize that all work performed under this Agreement be considered part of Customer’s trade, business or occupation and shall be specifically considered an integral part or essential to the ability of Customer to generate its services. NOLA Flooring and Customer further stipulate, agree and recognize that the services or work provided by any employee of NOLA Flooring or any other person retained by NOLA Flooring for the performance of any work or services under this Agreement shall be contemplated by and included in this provision and shall be deemed to be performing work or providing services which is an integral part of and essential to the ability of NOLA Flooring and Customer to generate its services.

19. Force Majeure

In the event NOLA Flooring’s performance of the Work or any of its obligations hereunder are either directly or indirectly prevented, restricted, or interfered with by reason of fire, flood, earthquake, or like acts of God, wars, revolution, civil commotion, explosion, acts of public enemy, embargo, acts of the government in its sovereign capacity, labor difficulties, including without limitation strikes, slowdowns, picketing, or boycotts, unavailability of equipment from vendors, pandemics, epidemics, or any other circumstances beyond the reasonable control of, and without the fault or negligence of, NOLA Flooring, then NOLA Flooring, upon giving notice to Customer, shall be excused from such performance on a day-to-day basis to the extent of such prevention, restriction, or interference until such time when such causes are removed or cease. Notwithstanding anything contained herein, Customer shall not be relieved of its payment obligations to NOLA Flooring for its Work performed.

20. Waiver

A waiver by NOLA Flooring of any term, covenant, or condition stated herein shall not be deemed to be a waiver of any subsequent breach of the same, or any other, term, covenant, or condition.

21. Governing Law; Disputes; Jurisdiction; Venue

This Agreement shall be governed by the laws of the State of Louisiana, without regard to its conflict of law rules. Any and all disputes arising out of or relating to this Agreement, including disputes over arbitrability, shall be resolved by binding arbitration administered by the American Arbitration Association. The arbitrator or, in the case of litigation, the presiding judge, shall award the prevailing party, as determined by the arbitrator or judge, its reasonable attorneys’ fees, expert fees, and costs. For purposes of this Section, the “prevailing party” means the party that substantially obtains the relief sought in the arbitration or litigation, whether by judgment, dismissal, award, or otherwise. The arbitrator’s award shall be final and binding, and judgment may be entered in any court of competent jurisdiction. Notwithstanding the foregoing, NOLA Flooring may bring any action for nonpayment directly in a court of competent jurisdiction in Jefferson Parish, Louisiana, without submitting such dispute to arbitration. Customer irrevocably waives any objection to venue or jurisdiction in either Orleans Parish or Jefferson Parish, including any claim of forum non conveniens. Nothing herein limits NOLA Flooring’s right to assert liens or pursue any other remedies available under Louisiana law.

22. Amendment

This Agreement may only be modified in writing signed by both parties.

23. Notice of Lien Rights

To the extent applicable and in accordance with La. R.S. 9:4852, you are having work done on your home. Under Louisiana law, all those who work on your home, including the contractor, any subcontractor, and their employees, as well as all those who supply materials or equipment for the work, can file a lien against your home if they are not paid. They can also recover from you personally the amounts they are owed. This can occur even if you pay the contractor all amounts you agreed to pay for the work.

You might protect yourself if you do one of the following:

• (a) Before the work begins, have a written and signed contract with your contractor and have a payment bond issued. Before work begins, make sure a notice of your contract and the bond are properly recorded in the parish mortgage records.
• (b) When your contractor is paid make sure that all those who worked on your home or supplied materials or equipment have been paid in full. To do this, you might want to require the contractor to give you written lien waivers signed by all those who worked on your home or supplied materials or equipment, acknowledging that they have been paid.

24. Severability

The provisions of this Agreement shall be deemed severable and the invalidity or unenforceability of any provision shall not affect the validity or enforceability of the other provisions hereof. If any provision or clause of this Agreement, or portion thereof, shall be held by any court, arbitrator or other tribunal of competent jurisdiction to be illegal, void, or unenforceable in such jurisdiction, the remainder of such provision shall not be thereby affected and shall be given full effect, without regard to the invalid portion. Customer and NOLA Flooring agree that if a court or arbitrator deems any provision in this Agreement (or portion thereof) too broad for the protection of NOLA Flooring’s legitimate interests or otherwise unenforceable, Customer and NOLA Flooring authorize the court or arbitrator to limit, reform or modify the restrictions to the extent reasonably necessary to protect NOLA Flooring’s legitimate business interests or as contemplated herein. In the event such modification is impossible, the unenforceable provision (or portion thereof) shall be deemed severed from this Agreement and every other provision of this Agreement, including the remainder of the paragraph from which a provision (or portion thereof) is severed, shall remain in full force and effect.

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